STATE OF OHIO v. KYLE D. RABER
C.A. No. 13CA0020
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
January 27, 2014
[Cite as State v. Raber, 2014-Ohio-249.]
COUNTY OF WAYNE. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 08-CR-0117
WHITMORE, Judge.
{1} Defendant-Appellant, Kyle Raber, appeals from the judgment of the Wayne County Court of Common Pleas, denying his motion to expunge and/or seal his record of conviction. This Court affirms.
I
{2} After he was indicted on one count of sexual battery, Raber pleaded guilty to sexual imposition, a third-degree misdemeanor. At the sentencing hearing, the State asked the court to classify Raber as a Tier I sexual offender, but the defense argued that classification was inappropriate.1 Because the court was unclear as to what the State‘s burden of proof was under the Adam Walsh Act, the court took the classification issue under advisement so that the parties could brief the issue. No additional briefing occurred, however, and the court later issued a
{3} More than a year later, the court sua sponte ordered a hearing on the issue of whether Raber should be classified as a Tier I sexual offender. Both sides presented evidence at the hearing, and the court determined that a Tier I classification was appropriate. The court then issued a judgment entry classifying Raber as a Tier I sexual offender, and Raber appealed from the judgment entry.
{4} On appeal, Raber argued that his classification was void because the trial court lacked jurisdiction to classify him. Specifically, he argued that, once the court had issued his sentencing entry, it was divested of jurisdiction to classify him. State v. Raber, 9th Dist. Wayne No. 10CA0020, 2011-Ohio-3888, ¶¶ 5-8. This Court rejected Raber‘s argument, but the Supreme Court reversed this Court‘s decision on appeal. See State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636. The Supreme Court held that Raber‘s sentencing entry was a final judgment and that the Double Jeopardy Clause “prohibited the trial court from reopening [the] case, conducting a separate trial to determine whether the sexual activity at issue [] was consensual, and classifying Raber as a sex offender subject to Tier I registration.” Id. at ¶ 26.
{5} On February 21, 2013, Raber filed a motion to expunge and/or seal his record pursuant to
{6} Raber now appeals from the trial court‘s judgment and raises two assignments of error for our review.
II
Assignment of Error Number One
THE DOCTRINE OF STATUTORY CONSTRUCTION DICTATES THAT
O.R.C. 2950.01(B)(2) HAS PRECEDENCE OVERO.R.C. 2953.36 AND, THUS, KYLE RABER SHOULD BE ABLE TO HAVE HIS RECORD EXPUNGED.
{7} In his first assignment of error, Raber argues that the trial court erred by denying his motion to expunge and/or seal his record on the basis that his conviction is one that is statutorily ineligible for sealing. We disagree.
{8} This Court applies a de novo standard of review to a trial court‘s interpretation of a statute. See State v. Calderon, 9th Dist. Medina No. 09CA0088-M, 2010-Ohio-2807, ¶ 6. “A de novo review requires an independent review of the trial court‘s decision without any deference to the trial court‘s determination.” State v. Consilio, 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.
{9} ”
{10} Raber was convicted of one count of sexual imposition, a violation of
{11}
a person who is convicted of * * * a sexually oriented offense if the offense involves consensual sexual conduct or consensual sexual contact and either of the following applies:
(a) The victim of the sexually oriented offense was eighteen years of age or older and at the time of the sexually oriented offense was not under the custodial authority of the person who is convicted of * * * the sexually oriented offense.
(b) The victim of the offense was thirteen years of age or older, and the person who is convicted of * * * the sexually oriented offense is not more than four years older than the victim.
“If [an] offender is not a sex offender pursuant to
{12} Initially, we note that the crime of which Raber was convicted eliminates any suggestion that the victim here consented. See id. at ¶ 28-33 (O‘Connor, C.J., dissenting). Raber‘s indictment charged him with knowingly coercing the victim and he pleaded to “Sexual Imposition, as amended.” The transcript from the plea hearing evidences that Raber‘s original sexual battery charge was amended to a violation of
{13} Although the General Assembly has amended
{14} A court must enforce an unambiguous statute as written, “making neither additions to the statute nor subtractions therefrom.” State v. Knoble, 9th Dist. Lorain No. 08CA009359, 2008-Ohio-5004, ¶ 12, quoting Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 451, 2002-Ohio-6718, ¶ 14. “Under the plain language of
{15} A “conviction” is distinct from a “classification.” See State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, ¶ 26 (O‘Donnell, J., concurring in part and dissenting in part.) (“[A]
Assignment of Error Number Two
THE TRIAL COURT CAN EXERCISE ITS INHERENT JUDICIAL POWER AND EXPUNGE KYLE RABER‘S RECORD ON THE BASIS THAT THE OHIO SUPREME COURT EXONERATED HIM AND, THUS, THE PROTECTION OF HIS PRIVACY INTEREST IS PARAMOUNT TO PREVENT AN INJUSTICE.
{16} In his second assignment of error, Raber argues that the trial court erred by not employing its inherent judicial authority to grant his motion to expunge and/or seal his record. We disagree.
{17} “[T]rial courts have the inherent authority to expunge records apart from the statutes when justified by ‘unusual and exceptional circumstances’ founded on constitutional guarantees of the right to privacy.” State v. Boykin, 9th Dist. Summit Nos. 25752 & 25845, 2012-Ohio-1381, ¶ 5, quoting Pepper Pike v. Doe, 66 Ohio St.2d 374, 377 (1981). “When exercising these powers, the trial court should use a balancing test, which weighs the interest of
{18} The record reflects that Raber never asked the court to expunge his record based on the court‘s inherent authority. In his motion to expunge and/or seal his record, Raber only asked the court to grant his motion “pursuant to
{19} “When reviewing arguments on appeal, this Court cannot consider issues that are raised for the first time on appeal.” Carnegie Cos., Inc. v. Summit Properties, Inc., 9th Dist. Summit No. 25622, 2012-Ohio-1324, ¶ 8, quoting Harris v. Akron, 9th Dist. Summit No. 24499, 2009-Ohio-3865, ¶ 9. Raber never asked the trial court to grant his motion pursuant to the court‘s inherent judicial authority. Because Raber failed to raise this issue in the court below, we cannot consider it on appeal. Accordingly, his second assignment of error is overruled.
III
{20} Raber‘s assignments of error are overruled. The judgment of the Wayne County Court of Common Pleas is affirmed.
There were reasonable grounds for this appeal.
Judgment affirmed.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
CARR, J.
CONCURS.
BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
DAVID T. EAGER, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.